Building Bridges

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Tuesday, April 18, 2006

John Caher: Dismantling Parole

'Dismantling Parole'
Parole Release Rates Plunge Under Pataki's Tough Policy

John Caher

01-31-2006 NY Law Journal

Thousands of New York prison inmates sentenced at a time when parole release was a realistic prospect are now lingering behind bars as the Pataki Administration has dramatically restricted parole for violent felons, arguably going beyond anything authorized by the Legislature, a probe by the New York Law Journal reveals.

Through an administrative process subject to scant judicial review, Governor George E. Pataki's appointees to the New York State Board of Parole have evidently used their broad discretion to implement a gubernatorial policy to keep violent felons behind bars as long as possible, notwithstanding the recommendations of sentencing judges guided by a different and more lenient legal, political and legislative framework.

Parole release rates have declined radically since Mr. Pataki, a Republican elected initially on a tough-on-crime platform, became governor in 1995 and as the board members appointed by his predecessor, Democrat Mario M. Cuomo, have all been replaced.

The results are telling: In fiscal year 1992-93, the state released 23 percent of prisoners eligible for parole who had committed so-called A-1 felonies — murder, attempted murder, kidnapping and arson. By 2004-2005, that had plummeted to 3 percent, just nine prisoners. At the same time, the release rate for other violent criminals who appeared for interviews before the parole board plummeted to 18 percent, or 337 inmates, from 51 percent.

In a 2003 ruling, Acting Supreme Court Justice Edward A. Sheridan of Albany observed that since taking office, the governor has annually called for the elimination of parole. The judge, citing the sharp drop in parole releases since Mr. Pataki took office, found an "undeniable inference that the Board has 'gotten the message' and is implementing executive policy."

Critics of the administration's parole practices say inmates convicted under prior regimes — -especially inmates who plea bargained and had reason to expect that they would be freed after serving the lower end of an indeterminate sentence — -are getting a raw deal.

"It's fine, a legitimate political decision to do things prospectively," said Alfred A. O'Connor, an attorney with the New York State Defenders Association in Albany. "It's quite a different matter when you are victimizing people who are in [prison] under a completely different set of circumstances, a set of assumptions about what would happen."

Consider Brian E. Jacques, who plea-bargained for a term of 15 years to life (see sidebar).

When Mr. Jacques pleaded guilty to an Albany County murder in 1983, he expected to be released after 15, maybe 17, years. At the time, that was a reasonable expectation. But Mr. Jacques had the misfortune of coming up for parole when government attitudes about early release had changed.

Despite a good prison record and no prior history of violent behavior, Mr. Jacques has been denied parole four times since Mr. Pataki took office and has spent 23 years behind bars. Mr. Jacques' fate is in the hands of the parole board. He could be released after his next parole hearing in August, or never, and the fact that the sentencing judge gave him the minimum is of no consequence.

"I wholeheartedly believe they are following Governor Pataki's agenda not to release violent felons," Mr. Jacques said. "I believe his message to the parole board is, 'Do not let these people out,' and they are following that standard."

Several parole board members either declined to be interviewed or did not return repeated telephone calls. Scott E. Steinhardt, spokesman for the Division of Parole, said in a statement that each of the board's decisions "reflect a careful and independent level of consideration."

By law, parole is a possibility, not a guarantee or reward for good behavior, and an inmate has no legal expectation of securing parole release (see sidebar). Moreover, the parole board has broad discretion in making its decisions. While the board is required to take into consideration a number of factors — such as the seriousness of the crime and the inmate's rehabilitative effort — -it can place any weight on those factors and need not explain itself. Current commissioners often give more weight to the seriousness of inmates' crimes than to claims of rehabilitation.

Public Safety

Chauncey G. Parker, the governor's director of criminal justice and commissioner of the Division of Criminal Justice Services, which encompasses the Division of Parole, does not deny that the parole board shares the governor's philosophy and, to the extent permitted by law, follows his agenda. He said it is axiomatic that a panel appointed by a long-term governor would reflect the philosophy of the executive. But he sidestepped questions on whether it is fair to impose today's attitudes on inmates sentenced during another era.

"The governor's focus as a matter of public safety is to make sure . . . that people convicted of violent crimes serve the longest possible sentences," Mr. Parker said. "It is clear that the governor thinks as a matter of public policy and public safety that a more effective way to do this would be to have a determinate sentencing structure and have the judges make the decision, except for murder where it would be life without parole or something like that."

Mr. Steinhardt, the Parole Division, spokesman, stressed that in the past decade, new crimes by parolees have decreased and the number of parolees returned on new felony convictions has dropped 48 percent.

Although exact numbers were not available, a large portion of New York's 63,000 inmates were sentenced to indeterminate, parole-eligible terms, the 2004 New York State Statistical Yearbook suggests. Mr. O'Connor said those convicts should be judged for parole purposes under the rules and protocols in effect when they were sentenced.

"It is one thing to have a determinate sentencing system. It is another to be retroactively imposing that," Mr. O'Connor said. "Now, there is no difference between a 15-year-to-life sentence and a 25-year-to life sentence."

Since taking office, Mr. Pataki has sought to redesign New York's sentencing structure to more closely mirror the federal system. The federal government abolished parole in 1984, substituting for the parole system one in which inmates serve a determinate sentence followed by a period of supervised release. Mr. Pataki would follow the federal government's lead.

"What the governor is proposing is a clear, transparent sentencing structure investing the discretion in the court and not in the parole board," Mr. Parker said. "Under current law, what the judge says is a factor, but ultimate discretion is vested in the parole board. If the governor's proposal went through, the judge's sentence would be the sentence."

But the Legislature has gone only half way, eliminating parole for some offenses, maintaining it in others — and leaving the thousands of inmates convicted under older laws at the mercy of the current parole board.

The Sentencing Reform Act of 1995 abolished parole for second felony offenders and Jenna's Law in 1998 abolished parole for all violent offenders and added a post-release supervision component. As it now stands, only non-violent, non-drug offenders receive an indeterminate sentence. All other felons are sentenced, prospectively, to a determinate term.

As the result of changes in the law, the number of violent inmates eligible for parole has plummeted to 2,414 from 7,623 since 1992-93, a decline of 68.3 percent. But the number of eligible violent felons released each year has declined more rapidly — by 88.4 percent. Overall, the state released only 38 percent of the violent and nonviolent inmates before it last year, down from 62 percent in 1992-93.

"The parole board is acting as a second sentencing court, imposing its own sentence in place of the sentence imposed by the judge," said Robert N. Isseks, a criminal defense attorney in Middletown. "That is particularly clear in those cases where the judge imposed a sentence less than the maximum [such as 15-years-to-life rather than 25-to-life]. Then, the parole board steps in and imposes a sentence that is twice as much."

Mr. Isseks recently filed a federal class action in the Southern District accusing the Pataki Administration of side-stepping the parole law in order to advance its agenda. Nine named plaintiffs who were sentenced to less-than-the-maximum for second-degree murder, but have been repeatedly denied parole, allege that the parole boards relied on the seriousness of their offense while paying little attention to other statutory criteria.

A Life Sentence

A convict serving, say 5 to 15 years, has to be released eventually. But one serving a sentence where the upper limit is life is guaranteed only a parole hearing every other year after serving the minimum. Almost 20 percent of the people in New York prisons are serving a term where the top end is life — the highest percentage in the nation and nearly twice the national average.

Gerald T. Balone has served more than 30 years on a 25-years-to-life sentence for three murders (see sidebar). During his three decades in prison, Mr. Balone has completed rehabilitation and vocational programs. He says he does not know what more he can do to obtain the parole release he believes was presumed by his legislatively defined sentence.

"I am at a loss," Mr. Balone said. "I don't know what to do."

Alfred Mancuso, a 72-year-old career felon, received a 25-years-to-life sentence for murder in 1978. He has been denied parole eight times — every two years for the last 16 years — even though he claims to have a spotless prison record and continues to maintain his innocence.

"The bottom line is, they are afraid of Governor Pataki," contended Mr. Mancuso, a prisoner at the Collins Correctional Facility near Buffalo. "Every time they grant someone parole, [Mr. Pataki] comes out against it in the newspaper. I honestly believe they are hitting me because they are afraid of the repercussions."

Mr. Mancuso and other prisoners and advocates point repeatedly to the case of Kathy Boudin, a 1960s radical involved in the infamous 1982 Brinks armored truck heist. Three people were killed, and Ms. Boudin was convicted of felony murder.

After serving 22 years of a 20-years- to-life term, Ms. Boudin, who had numerous individuals and organizations lobbying for her release, was paroled in 2003 (see sidebar). Mr. Pataki promptly denounced the decision and, within months, replaced longtime Parole Board Chairman Brion Travis. There have been no controversial parole releases since then.

'No Accountability'

"The lack of any established criteria and the unlimited discretion of the parole board begs for problems," said advocate Amy James-Oliveras of Wappinger's Falls, whose husband, George Oliveras, served 27 years of a 25-years-to-life term before he was paroled on a murder conviction. Ms. James-Oliveras is active in the Coalition for Parole Restoration, an organization comprised largely of wives of parole-eligible prisoners whose release has been blocked by the parole board.

"There is no accountability, and no real avenue of judicial review," she said.

Some trial judges have overturned or challenged parole board determinations on the grounds that the appointed panel is following executive policy rather than the law (see sidebar), a charge the Division of Parole disputes. But even if a prisoner convinces a court to order a new hearing, his efforts may be for naught.

A review of scores of cases and records reveals a pattern: An inmate is denied parole, files and loses an administrative appeal, files and loses an Article 78 petition and appeals to an appellate panel. Since the courts can do nothing other than order a new parole hearing, and the inmate gets a hearing automatically every two years, by the time the matter gets to the appellate court, another hearing has been scheduled, and the whole court issue is moot.

Mr. Oliveras, for instance, was convicted of murder and robbery in the Bronx in 1975. His 25-years-to-life sentence made him eligible for parole in 2000. But at the time of his hearing, about a third of his record on his rehabilitation was missing. There was no record of his academic achievements or his participation in anger management courses.

He challenged his parole denial administratively, but lost. He went to Supreme Court and was denied again. He appealed to the Appellate Division. When the appeal finally got to court, Mr. Oliveras was four days from another parole hearing. So the court dismissed his claim for mootness.

At his next appearance — when Mr. Oliveras was prepared to go to court over the missing records — he was granted parole, so the issue of the lost records was never adjudicated. He was one of 10 A-1 violent felons paroled in 2002, out of 242 eligible — a release rate of about 4 percent.

"They [parole commissioners] are playing a role they are not supposed to play," Mr. Oliveras said. "They are re-sentencing in effect. They are playing a judicial role."

Critics say that, after a few adverse court rulings, the parole board now covers itself by stating, in its denial, that it took into account the statutory factors. But the critics suspect that the board makes determinations based on the instant offense alone.

"There are cases where it is obvious [that denial of parole] is based on the instant offense, and only lip service is being applied to the statutory criteria," Mr. Isseks said.

Joy Pujas of Ulster County is also active in the parole restoration movement. Her husband is doing time for a murder 24 years ago. He was sentenced to 20 years to life in New York City in 1982, came up for parole in 2002 and has been denied twice since then.

"If a judge can impose 25-to-life but instead imposes [20]-to-life, that indicates the judge thinks that under some circumstances [20] is sufficient," Ms. Pujas insisted. "But the parole board says it is not."

Ms. Pujas is urging legislation that would change the way commissioners are appointed. At least three lawmakers — Assemblyman Jeffrion L. Aubry, D-Queens, and Senators Velmanette Montgomery, D-Brooklyn, and Thomas K. Duane, D-Manhattan — are sympathetic and have proposed legislation or sponsored forums to discuss the issue. So far, there has been little movement in either house.

Political Considerations

"Clearly, there are political considerations in these appointments," said S. Earl Eichelberger, who served as a parole commissioner between 1985 and 1999 as a Cuomo appointee.

Mr. Eichelberger, whose term extended four years into the Pataki era, said there was a sense that commissioners were expected to carry out the general parole policies of both the Cuomo and Pataki administrations.

However, Mr. Eichelberger said he is unaware of a commissioner ever receiving direct orders from the executive chamber during either administration. Rather, he said, it was assumed that the board should respect the criminal justice philosophy of the sitting governor.

Retired Commissioner Henri C. Raffalli, who served on the parole board from 1987 to 1998, said the panel was influenced not by politics or politicians, but by changing social values.

"I never felt any pressure, not from Cuomo and not from Pataki," said Mr. Raffalli. "The social pendulum kept swinging back and forth. The board is very sensitive to the expressions of society, as expressed in the newspapers. So we would try to run along those lines."

At one hearing shortly after Mr. Pataki came into office, Mr. Raffalli told a prisoner up for parole that "society says murder is a heinous crime" and the voters had elected a governor who "doesn't say we ought to put you in prison for 15 to life. He says we ought to get rid of you completely and kill you," according to a transcript of the proceeding.

Mr. Raffalli, in an interview, said his point was that prevailing attitudes had shifted fundamentally since the prisoner was sentenced to a 15-year-to-life term, and that those sentiments weighed heavily against his release. The prisoner was denied parole.

Inmates and their families say they are losing hope that parole decisions will be made based on the objective criteria of the law as written.

"You want to believe in a system, a system where there's righteousness, where people pay their dues and that it is all about correcting and rehabilitating and not only about punishment," said Ms. Pujas, who testified at Mr. Aubry's hearing. "We have come to the point where it is total punishment. Financially, it is devastating. Emotionally, it is crippling."